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Update, March 30, 2016

An Almaty appeals court on March 30 converted the prison terms for the activists Ermek Narymbaev and Serikzhan Mambetalin, instead imposing restrictions on their freedom for a period of three years for Narymbaev and one year for Mambetalin. Both activists remain barred from civic activities for five years.

(Berlin) – Two activists in Kazakhstan were convicted and sentenced to prison on January 22, 2016, on the vague and overbroad charge of “inciting national discord” over writing they posted on Facebook, Human Rights Watch said today.

Kazakh authorities should immediately secure the release of the activists, Serikzhan Mambetalin and Ermek Narymbaev, and have their convictions, which violate their rights to free expression, set aside. In a separate case, authorities should also lift restrictions on the rights to freedom of movement and association imposed on Bolatbek Blyalov, another activist found guilty of the same vague offense, and have his conviction quashed.

“Two activists have been jailed in Kazakhstan for peacefully expressing their views,” said Hugh Williamson, Europe and Central Asia division director at Human Rights Watch. “Kazakh authorities should stop targeting critical voices with this overbroad ‘incitement’ charge, remove it from the books, and start respecting basic rights to freedom of expression and opinion.”

Over and over again in recent years the Kazakh authorities have misused this vague and overbroad charge, which criminalizes speech and activities protected under international law, to try to silence government critics, Human Rights Watch said.

The Almalinskii District Court in Almaty sentenced Narymbaev to three years in prison and Mambetalin to two years and barred both from civic activities for five years.

Authorities arrested the men in October 2015 in connection with Facebook posts about a text, attributed to another activist, which describes the Kazakh nation in provocative terms. Authorities claimed that the posts contained signs of ‘inciting national discord’ and offended the honor and dignity of the Kazakh nation.

Their trial began on December 9. In initial hearings, the men petitioned the court to dismiss the case on grounds they committed no crime. Mambetalin’s lawyer also filed a motion asking the court to seek an opinion from the Constitutional Council, a body that reviews whether legislation complies with Kazakhstan’s constitution, on the charge of “inciting social, national, clan, race, class, or religious discord” under article 174 of the criminal code. The judge rejected these motions.

Narymbaev, who has health problems, began a hunger strike on January 18, 2016. On the final day of the trial, he was so weak he had to be brought to the courtroom on a stretcher. The men have been in detention since their arrest.

Narymbaev’s lawyer told Human Rights Watch that the men plan to appeal.

Blyalov was arrested in November 2015 for video clips and media interviews on YouTube in which he commented on a range of topics, including Kazakh nationalism and the Kazakh language. Authorities claimed the clips amounted to a “serious crime against peace and security of humankind.”

Blyalov was convicted in a separate trial in the Saryarkinskii District Court in Astana on January 21. He admitted guilt and said he repented and was released. But the court imposed restrictions on his freedom for three years, including prohibiting him from changing his place of residence or work, or from spending time in public areas during his time off.

Article 174 refers to “deliberate actions aimed at inciting social, national, clan, racial, class, or religious discord, at insulting the national honor and dignity or religious feelings of citizens, as well as the propaganda of exclusivity, superiority, or inferiority of citizens based on their attitude to religion, class, ethnic, tribal, or racial origin.” The offense carries a maximum penalty of 20 years in prison.

Human Rights Watch, local human rights defenders, and authoritative international bodies such as the United Nations special rapporteur on the rights to freedom of peaceful assembly and association, have called on Kazakhstan to narrow the “incitement” charge or repeal it, as the vaguely defined offense constitutes interference with basic rights protected by international law.

The International Covenant on Civil and Political Rights, to which Kazakhstan is a party, permits a government to restrict the right to freedom of expression only if the restriction conforms to strict tests of necessity and proportionality, and is nondiscriminatory.

But no government may impose criminal sanctions for expressing thoughts or opinions merely because others, including government officials, deem them offensive, Human Rights Watch said.

Laws that target speech that incites violence, discrimination, and hostility must also respect the core right of free speech, and are considered compatible with human rights law only when such violence, discrimination, or hostility is imminent, and the measures restricting speech are absolutely necessary to prevent such conduct.

“These three new ‘incitement’ convictions fit a clear pattern of abuse by the authorities,” Williamson said. “Not another government critic should have to go through an arrest and trial – or be jailed – merely for expressing an opinion.”

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